land owner owning more than 160 acres, as condition precedent to right to receive water for lands in excess of 160 acres, must dispose of excess lands are not invalid on ground that they constituted a taking of property without due process of law. Application of Frenchman Valley Irrigation District, 167 Neb. 78, 91 N.W. 2d 415 (1958).

3. Repayment contracts

A repayment contract is not invalid because of absence of provision that the district will obtain title to the distribution system when its obligation therefor has been totally discharged. Ivanhoe Irr. Dist. v. McCracken, 357 U.S. 275, 298–9 (1958). 6. Just compensation-Generally

A claim against the United States under the Tucker Act for compensation for the physical taking of land resulting from construction of a water resources project, is founded upon the Fifth Amendment and does not require, as stated in earlier Supreme Court cases, an implied promise to pay. Therefore, it is not necessary to find that the Government's agents were aware that their acts would result in the taking of property so that their performance of the acts can be regarded as a somewhat tenuous promise to pay. Cotton Land Co. v. United States, 75 F. Supp. 232, 109 Ct. Cl. 816 (1948) (flooding attributable to silt deposited in Colorado River after construction of Parker Dam), citing, inter alia, United States v. Causby, 328 U.S. 256 (1946) (overflight by Government airplanes), United States v. Dickinson, 331 U.S. 745 (1947) (permanent and intermittent flooding and erosion of lands bordering reservoir of Winfield Dam, Kanawha River, West Virginia), and Jacobs v. United States, 290 U.S. 13 (1933) (increase in intermittent floods above reservoir of Widow's Bar Dam, Jones Creek, Alabama). Accord: Richard v. United States, 282 F. 2d 901, 152 Ct. Cl. 225 (1960) (seepage from Friant Canal).

(Editor's Note: The Tucker Act is the Act of March 3, 1887, 24 Stat. 505. It authorized suits to be brought in the Court of Claims against the United States in certain cases, including claims founded upon the Constitution. This includes claims based upon the Fifth Amendment provision that private property shall not be taken for public use without just compensation. 28 U.S.C. § 1346 relates to the jurisdiction of the Federal District Courts in such cases, and 28 U.S.C. § 1491 relates to the jurisdiction of the Court of Claims. These sections appear herein in the Appendix.)

Where the plaintiff's land is flooded by

underground waters as the natural consequence of the construction of O'Sullivan Dam, Columbia Basin project, the United States is liable to pay just compensation notwithstanding the care that was taken to prevent such result. Pashley v. United States, 156 F. Supp. 737, 140 Ct. Cl. 535 (1957).

7. -Taking, what constitutes

Where the owner's property has not diminished in value as the result of the Government's action in increasing the salinity of the waters flowing on the plaintiff's land, there has been no taking. Gustine Land & Cattle Co., Inc. v. United States, 174 Ct. Cl. 556 (1966).

Where on the basis of the record as a whole, the natural consequence of the Government's activities in connection with the Columbia Basin project was the raising of the piezometric surface waters located beneath plaintiff's diatomite deposits to such an extent that the moisture content of the crude was so increased as to make it uneconomical to process into finished products, there had been a taking for which the owner is entitled to just compensation. Kenite Corp. v. United States, 157 Ct. Cl. 721 (1962), cert. denied 372 U.S. 912 (1963).

The substantial reduction in the natural flow of the San Joaquin River as the result of the impoundment and diversion of the flow at Friant Dam upstream constitutes a seizure or taking, in whole or in part, of rights which may exist in the continued flow and use of the water; it does not constitute a trespass against such rights. This seizure was authorized by Congress when it authorized the project, and any relief to which claimants of the rights may be entitled by reason of such taking is by suit against the United States under the Tucker Act. Dugan v. Rank, 372 U.S. 609 (1963).

Where seepage from the Friant-Kern Canal is found to be the substantial and controlling cause of the rise in the ground water level which inundated the soil in the root and agricultural zone, rendering the land unsuitable for the cultivation and growth of plaintiff's orange grove, the United States has taken a seepage easement under and through the property and must compensate the plaintiff for it. Richard v. United States, 282 F. 2d 901, 152 Ct. Cl. 225 (1960), amended on other grounds, 285 F. 2d 129, 152 Ct. Cl. 266 (1961).

Where riparian rights of landowners along branch channel of San Joaquin River were subordinate to water rights of corporation which, with its subsidiary and affiliated companies, owned rights to use very substantial portion of flow of San

Joaquin River, and United States, which, in carrying out Central Valley Project for irrigation purposes, formulated plan whereby waters of San Joaquin River were diverted and waters of Sacramento River were substituted therefor, entered into contract with corporation and its subsidiaries for such substitution, and United States faithfully and fully delivered substitute waters, and landowners suffered no actual damage because of substitution, any impairment of landowners' rights because of substitution was at most a technicality, for which landowners could not recover from United States, since United States could not with impunity take away substitute waters. Wolfsen v. United States, 162 F. Supp. 403, 142 Ct. Cl. 383 (1958), cert. denied 358 U.S. 907.

In order to constitute a taking of property within the Fifth Amendment by flooding because of construction of a dam, there must be a direct invasion of plaintiff's property by waters of the government, and the invasion must be permanent so that the lands of the plaintiff are practically destroyed or the invasion must be a recurrent one amounting to an easement; otherwise the damage, if any, is consequential and amounts to a tort only. North v. United States, 94 F. Supp. 824 (D. Utah 1950).

Where the United States constructs a drain across a portion of a parcel of land which drains subsurface percolating water from the remainder of such parcel, the United States must compensate the owner for damage to such remainder. United States v. 31.07 Acres of Land, etc., 189 F. Supp. 845, 849-53 (D. Mont. 1960). However, there is no right of recovery where there is no direct physical invasion of the complainant's land, as in the case where the drain is at least a quarter of a mile away from plaintiff's land and from the springs which are the source of the plaintiff's water right. McGowan v. United States, 206 F. Supp. 439 (D. Mont. 1962).

8. -Natural consequence

Where, as the natural consequence of the construction of Parker Dam on the Colorado River, silt was deposited where the river collided with the still water, this filling up of the bed of the river raised the level of the water, which in turn overflowed its banks and flooded and isolated portions of adjacent lands, the landowner is entitled to just compensation under the Fifth Amendment. Cotton Land Co. v. United States, 75 F. Supp. 232, 109 Ct. Cl. 816 (1948). 9. Consequential damages

Permanent damage to plaintiff's orchard which is not the direct, natural or probable

result of the government's activity in constructing a storage reservoir, but rather the incidental and consequential result of such activity, forms no basis for a recovery under the Fifth Amendment. Columbia Basin Orchard v. United States, 132 F. Supp. 707, 140 Ct. Cl. 535 (1957).

In an action to halt work on the enlargement of the Pine View Dam and Reservoir, the Ogden River Water Users' Association contention, that it was in danger of being deprived of its rights and properties without just compensation or any compensation, in violation of the Fifth Amendment, was not supported by facts or allegation that irreparable damages would ensue. Any prospective damages to the Ogden River Water Users' Association appeared to be adequately compensable in damages and in such case an injunction will not lie nor does the Fifth Amendment entitle one to anticipatory compensation. Ogden River Water Users' Ass'n v. Weber Basin Water Conservancy, et al., 238 F. 2d 936 (1956). 10. Statute of limitations

The statute of limitations began to run on a claim for deprivation of floodwaters and high flows in the San Joaquin River, resulting from construction of Friant Dam, when the situation became sufficiently stabilized so that the consequences of the invasions have so manifested themselves that a final amount may be struck. Gustine Land and Cattle Co., Inc. v. United States, 174 Ct. Cl. 556 (1966), citing United States v. Dickinson, 331 U.S. 745 (1947).

Where the United States in 1908 appropriated all the water of the Rio Grande River above lands in Hudspeth County Conservation and Reclamation District No. 1, riparian rights of owners of land in Hudspeth District were destroyed in 1908, and their alleged right of action against the United States for the taking of riparian rights was barred by limitations in 1958. Bean v. United States, 163 F. Supp. 838, 143 Ct. Cl. 363 (1958), cert. denied 358 U.S. 906.

11. Water power rights

The United States, by constructing the Fort Gibson dam on the non-navigable Grand River, a tributary of the navigable Arkansas River, is not required to compensate a government agency of the State of Oklahoma for the loss of its franchise under Oklahoma law to construct a hydroelectric power project at the site. United States v. Grand River Dam Authority, 363 U.S. 229 (1960).

In a suit brought by the United States for the condemnation of private land adjoining a navigable river above the high

water mark as part of a project for the improvement of the Savannah River basin, the just compensation which the Fifth Amendment requires to be paid does not include the value of the water power in the flow of the stream. United States v. TwinCity Power Co., 350 U.S. 222 (1956).

The owner of fast land on the banks of a navigable river who had, under revocable

permit from the United States, constructed facilities in the river for the production of water power, is not entitled to compensation for water power rights when, pursuant to an act of Congress, the permit is revoked and the land and facilities are taken by the United States for navigation improvement. United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913).